Slouching Toward Oblivion: the Divergent Implementation and Potential Exodus of Chevron Analysis in the Supreme Court’s Interpretation of Immigration Law
87 UMKC L. Rev. 549 (2019)
61 Pages Posted: 7 Feb 2019 Last revised: 10 Feb 2020
Date Written: January 22, 2019
The adoption of the Chevron test in 1984 radically changed the face of judicial deference to agency action, but it has taken some time for the test to truly develop meaning and uniformity in the jurisprudence. This article examines some carefully curated examples of Chevron analysis by the Supreme Court since the test’s inception but focuses on the Court’s treatment of agency deference in cases where Chevron was used without being specifically noted or cited. In analyzing the case law, there appear to be four large categories of reasons for avoidance: constitutional concerns, jurisdictional or judicial review delineations, plain language interpretations, and criminal law interpretation that intersects with the immigration interpretation. This article creates a doctrinal map for the Supreme Court’s “shadow” use of Chevron deference and argues for a uniform application of the test and a properly structured step zero level analysis. This is especially relevant in light of congressional efforts to overturn the doctrine by statute and recent judicial invitations to overrule it.
Keywords: immigration, administrative law, judicial deference, Chevron, Supreme Court, doctrinal map
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